Scottish Court of Session Decisions

On or about 2 October 1989 the pursuer was working in the course of his employment with the defenders, then operating under a different name, on a building site in Edinburgh. He was operating what was known as a grouting machine, which was used firstly to make a concrete mixture consisting of sand, cement and water, and then propelling that by means of a hose into the foundations of the building. In the course of that work he sustained an accident whereby the cement mixture was sprayed into his face injuring both his eyes, one very seriously. In this action he claims damages against the defenders.

After protracted procedure the defenders brought in the third party, seeking relief or contribution from them upon the basis that the treatment which the pursuer had received when he attended at the Royal Infirmary Edinburgh immediately after the accident was negligent and contributed to the ultimate condition of his left eye. The case thus raises two separate issues which I shall deal with separately.

For the record the pursuer gave evidence on his own behalf supported by a work-mate, Christopher Shaw, his foreman at the time, William Cunningham, and two relations, his cousin Robert Quigley and his brother, whose evidence was taken on commission. He led medical evidence from Professor Kirkness, Professor of Opthamology at Glasgow University who had treated him once he had returned to the West of Scotland, and Dr Gupta, who had operated upon him at Inverclyde Hospital the day after the accident, the circumstances of which will become clear.

For the defenders no evidence was led on the merits but a Mr Peter Davies was presented to me to give evidence in respect of the employability of the pursuer, particularly with a view to the future. The defenders also led an opthamologist, Dr Kyle, who was led purely as an expert to express views on the issue as between the defenders and the third party.

The third party evidence was led from Dr MacLean, who was the Senior House Officer at the Eye Pavilion of the Royal Infirmary who dealt with the pursuer on the night of the accident after he had been initially received in Casualty, and from Dr Colerio, another opthamologist who was led as an expert with a view to rebutting the evidence critical of Dr MacLean's treatment.

The circumstances surrounding the accident were not seriously disputed by the defenders, albeit the precise cause which led to the cement being ejected into the pursuer's face was not established.

In general terms the grouting machine both mixes the various ingredients and then expels them under pressure through a hose to the ultimate destination. The pursuer was working at the machine when a blockage occurred causing the liquid no longer to flow. The blockage was obviously in the hose which was lying on the ground, at times obscured by mud and water. The pursuer, it was said in accordance with normal practice, depressured the system and, when the blockage did not clear, disconnected the hose. While he was either holding the hose or at least was in close proximity to it as it was lying on the ground, for some reason the blockage cleared and cement was expelled at considerable pressure and speed out of the end of the hose, either directly or indirectly, into the pursuer's face. Despite a submission from counsel for the defenders to the contrary, I do not consider it necessary to be any more precise as to the mechanism which actually caused this expulsion of the material to take place. It was suggested there was a kink in the hose which somebody had rectified by moving it, thus causing effectively an explosion out of the end. On the pleadings Shaw was blamed for doing this but he denied it and not further attempt was made by the defenders or indeed the pursuer to suggest that was the case.

The pursuer's left eye was much more seriously affected than the right, but immediately first aid by way of washing was given to him at the site before he was taken to the then Casualty Department of the Royal Infirmary in Edinburgh accompanied by Shaw. He was initially treated in that department with further irrigation of the eye by washing and the staff then dispatched him to the Eye Pavilion where he was treated by Dr MacLean. At the same time the pursuer's brother arrived from Port Glasgow where he lived and was at least present with the pursuer by the time he got to the Eye Pavilion. When dealing with the case as between the defenders and the third party I will require to be much more precise as to what took place between Dr MacLean and the pursuer within the Eye Pavilion, but suffice it to say at this stage in the narrative that after some treatment from the doctor, particularly to the left eye, the pursuer left the Eye Pavilion with his left eye padded, armed with a note of treatment written by Dr MacLean for the purpose of it being presented to the staff of Inverclyde Royal Hospital, to which the pursuer intended immediately to go upon arrival in the West of Scotland that evening. That he did, and upon arrival was given further treatment by the admission staff before being admitted to the hospital overnight. He was seen by Dr Gupta in the morning who operated upon him in the course of the afternoon. The pursuer has subsequently undergone further surgery to the left eye by way of graft but it is accepted that at the present time the sight in the left eye is virtually destroyed. The right eye had made more or less a complete recovery. He is therefore a one-eyed man as a result of this accident.

Turning first to the question liability as between the pursuer and the defenders. The defenders initially and at least by the time of the proof, had paraded a number of averments relating to the cause of the accident, provision of goggles and contributory negligence, all of which were expressly disclaimed by counsel for the defenders at the close of the evidence. He accepted that goggles had not been provided for the pursuer. He ventured no immediate cause of the expulsion of the liquid or sludge from the hose and abandoned contributory negligence.

Equally the pursuer made a considerable number of cases of fault both at common law and the under the Regulations that were pleaded, particularly the Protection of Eyes Regulations 1974. At the end of the day, however, he put forward cases only at common law in relation the lack of provision of goggles and under Regulations 5 and 7 which, taken in conjunction with the schedule to the Regulations, can be paraphrased by imposing an obligation on the employer with regard to certain work operations that eye protection be provided. One of those operations is,

Against that background counsel for the pursuer's position was simple and straightforward. While he recognised that the Regulations required there to be established a reasonably foreseeable risk of injury to the eyes in the particular operation and that this that added little to the common law position, he submitted that in general terms the sort of work that the pursuer was doing in relation to the handling of the machine and the material involved in it which was highly toxic created a general risk of injury to the eye which the employer was bound to assess and address by the provision of goggles. Under reference to Hughes v The Lord Advocate 1963 S.C.(H.L.) 31 he submitted that where a general risk existed which required to be addressed and which manifested itself in an accident the precise mechanisms of the accident leading to that manifestation need not be established by the pursuer. It was sufficient if there was inherent risk of a general nature requiring action on the behalf of the employer. In this case that action was the provision of goggles for all the work that the pursuer was doing in the vicinity of this machine.

Counsel for the defenders submitted that since reasonable foreseeability was an essential part of the ingredients of both the common law and statutory case, the pursuer had to establish that the precise mechanism leading to this accident was a reasonably foreseeable event and, in the absence of any real explanation as to how the cement came to be expelled from the hose, he had failed so to do. He had therefore failed to make out his case in as much that he had not discharged the onus that was upon him in terms of proof of liability.

I have no hesitation in rejecting the position of the defenders and accepting in its entirety the submission of counsel for the pursuer. This material is highly toxic containing alkali which can burn, as happened in this case. It is being handled in all sorts of ways by the men operating these machines and they could come into contact with it on any part of their bodies in all sorts of ways. The eyes are particularly vulnerable in this respect. In my opinion therefore the general circumstances surrounding this accident reveal an inherent risk of danger, particularly to the eyes, of a general nature which the defenders required to address. Indeed, there appears to be some documentation that suggests that soon afterwards they did. Be that as it may, I am satisfied that the failure to provide the pursuer with goggles while working at this machine constitutes a breach of the Regulations and also fault at common law. Obviously the provision of goggles would have avoided the injury if the pursuer had been wearing them and that is sufficient to establish a causal nexus between this ground of fault and the injury sustained.

In these circumstances the pursuer in my opinion has established fault on the part of the defenders in relation to this accident and he is entitled to damages from them.

At this stage therefore it is appropriate that I turn to deal with damages before addressing the wholly separate questions that arise as between the defenders and the third party.

Parties very helpfully agreed that solatium should be assessed at £30,000 net of interest to reflect the loss effectively of the sight of one eye and the pain and discomfort that the pursuer has suffered. I need not therefore address that issue any further.

They were also agreed that an appropriate loss for the services claimed made under the Administration of Justice Act would be £17,500 inclusive of interest, and I need consider that matter no futher.

Turning to the question of loss of wages, the pursuer worked for a short period in the mid-1990s as effectively a storeman but has been, apart from that period, unemployed since the accident and still is. The agreed arithmetical calculation of his loss of earnings from October 1989 to the present date is a total of £161,326. From that sum, if it is appropriate to grant it for the whole period, there falls to be deducted the wages he earned from the job to which I have referred and also a payment he received from the defenders to a total of £8,756, giving a total of £152,570.

Counsel for the defenders submitted that upon the evidence it was unreasonable for the pursuer to have remained out of work for so long. Some if his difficulties or reasons for so doing upon the evidence were not due to the state of his eye but rather to depression, stress and marriage difficulties. The defenders' own witness, Mr Davies, was critical of the pursuer for failing to obtain employment or at least training. There is also some suggestion it was submitted on the evidence that he was fit for work much earlier than the present time. Counsel pointed to the fact that as at June 1996 Professor Kirkness advised the pursuer was fit for work which did not require binocular vision or stereoscopic vision and Mr Davies himself had interviewed the pursuer in March 1997, advising that he should do down certain routes with a view to take training. The pursuer himself accepted that he did go to the James Watt Institute in Greenock with a view to trying to obtain information but was essentially unsuccessful. Counsel was highly critical of that and if depression, which obviously upon the evidence the pursuer had suffered, was related to this accident, evidence should have been led to support it. He therefore submitted that the wage loss should be cut off in April 1996 or at least June 1996 and that nothing should be awarded beyond that point which obviously therefore also embraces the future. I shall turn to the future in a moment.

The pursuer himself admitted that he had found it very difficult to come to terms with the effect of the loss of the eyesight, that he had become depressed, unmotivated and, until such time as the litigation was disposed of, he had not felt able to apply himself seriously to the question of work. He accepted that some criticism might be justified in that respect, but he still maintained, supported by his cousin, that his various depressive problems and the break-up of his marriage all stemmed from the consequences of the loss of eyesight and the traumatic effect of the accident.

The pursuer struck me as a credible, honest witness doing his best to come to terms with a serious disability not caused in any way by his own fault. While on one view it might unusual to accept a period of ten years of unemployment with the exception of the limited period in the middle as a reasonable consequence of such an accident, I am prepared so to do in this case, albeit I may take a rather more strict view of the future. Mr Davies produced his reports upon the basis under certain computer exercises there was a considerable number of occupations that the pursuer could be trained to undertake, but with great respect to him it seems to me that these sort of exercises lose touch with reality when the person in question has no basic academic qualifications, and even if he can be assessed as reasonably intelligent, the notion for example that he could undertake professional training to assume some form of professionally trained job goes to my mind beyond what could be reasonably stated. The pursuer's own wish is to buy a guest house, which always had been his intention if he could raise enough capital by working on the building sites and in the construction industry. He asserted to me that he was still hoping that that could be achieved.

In my opinion the assessments such as were made by Professor Kirkness that the pursuer was fit for work does not take account of the depressive problems, which in my opinion are reasonably related to the accident. It therefore seems to me appropriate that the pursuer should receive the whole of his wage loss over the last ten years, the length of time really reflecting the lamentable length of time it has taken for this accident to come to court, subject of course to the deductions reflecting actual receipts. I am therefore prepared to accept the figure of £152,570 put forward by counsel for the pursuer as past loss, together with the interest calculation he made on that of £79,718. I therefore accept the proposition from counsel for the pursuer that the total past loss should be £232,288.

However when it comes to the future I take issue with counsel for the pursuer. He constructed a well-supported submission based on the so-called Ogden tables which of course relate to multipliers in relation to fatal and permanent disability cases, albeit that some of the tables take into account discount factors beyond mere mortality. For the record I should record that in relation to these tables counsel relied upon the long-term retirement tables as producing a multiplier of anything between seventeen and nineteen, while on a retirement age of between 50 and 55 he produced a multiplier averaging out at around fourteen. I do not go into the matter in any more detail because I consider that the approach in this case using the Ogden tables is misconceived. However I should record that on a fourteen year multiplier, on a multiplicand which reflected initially some period of training and then reduced earnings, a final figure of £175,000 could be achieved.

I reject this approach in favour of that proposed by counsel for the defenders, principally because I do not consider the Ogden tables should be applied to a case where rather unusually a very long period has been allowed for past earnings based principally upon depressive consequences of the accident rather than the actual disability. This is not in my opinion a case of total disablement. There are obviously a considerable number of occupations, although not within the range posed by Mr Davies, that this pursuer can undertake and he himself accepts that he is not unemployable. Having accepted as I have that the reason he has not taken more steps to rectify the problem to date is largely due to his depressive state, I am not prepared to accept that that is likely to last indefinitely, particularly with the disposal of this action and the receipt by him on any view of a substantial sum of money. Counsel for the defenders' approach to this problem was simply that it should be addressed on a lump sum and very general basis, reflecting that the pursuer will need some further time to get himself organised on the employment front, but it should not be very substantial given his age at 34.

I would not go so far as to accept counsel for the defenders' submission that no future loss should be awarded, but I consider it should be in very narrow and short compass. The pursuer could be regarded as fortunate in having persuaded me that the whole of past period is relevant to past wage loss subject to the deductions. I consider now that there is responsibility upon him to take serious steps with the money that he is about to receive to embark on re-training or, if he is intending to acquire a guest house, to try and do so. He should be given a reasonable time to do that and I would allow therefore a period of eighteen months at full wage loss, which produces a figure of £30,000, and a further year at the lower figure of £12,000. Given that counsel for the defenders' suggested a lump sum approach I will round that figure up to £50,000, but that is the limit in my opinion of what should reasonably be awarded in respect of future loss.

In these circumstances the total loss of earnings claim should be assessed at £282,288 to which requires to be added the services claim which leaves the final total of £299,988. To that again there should be added solatium at £30,000 with the agreed interest figures of 71/2% to 31 March 1993 and 4% thereafter to decree. Parties should agree the total sum by way of interest to be added to solatium as a matter of quantification to achieve a figure which will be reflected in the decree which, since the pursuer does not sue the third party, will be granted against the defenders.

I turn now to deal with the entirely separate issue as between the defenders and the third party.

The essence of this claim is that Dr MacLean who treated the pursuer in the Eye Pavilion at Edinburgh Royal Infirmary did so inadequately both in respect of the actual treatment he gave to the pursuer and by not admitting him to hospital and allowing him to see a consultant that evening. There is a factual dispute between the pursuer and doctor as to the precise circumstances which led to the pursuer leaving the Eye Pavilion and proceeding directly to Inverclyde Royal Infirmary which I require to resolve, but the evidence uncontradicted is that he did proceed to that latter hospital where, at the Casualty Department, further treatment was given to the eye. He was operated upon by Dr Gupta the following day who deponed to removing further material from the left eye which he described as a number of particulate objects about the size of a pin-head, probably five in number. Subsequent surgical treatment given to the pursuer by Professor Kirkness was designed to be remedial and does not bear upon the issue that I have to decide in relation to the dispute between the defenders and the third party.

That dispute raises two issues, namely whether or not Dr MacLean acted negligently in the way he treated and handled the pursuer at the Eye Pavilion and, secondly, whether the ultimate condition of the left eye which now exists was materially contributed to by the fact that there remained in the eye for some twenty four hours before being removed by Dr Gupta the particulate material to which I have made reference. Unless the defenders establish that this was at least a contributory cause of the final state of the left eye, then the case against the third party will fail irrespective of how the treatment meted out by Dr MacLean is categorised. It is therefore appropriate that I look at this point first.

The four medical witnesses who gave evidence were all questioned about it. Professor Kirkness' essential position was while it was essential to treat chemical burns to an eye as quickly as possible to the extent that time was of the essence and the longer material remained in the eye the greater the risk of damage, he found it quite impossible to quantify the extent to which the remaining particulate material in the eye removed by Dr Gupta would over the relevant twenty four hour period have caused or contributed to the ultimate state of the eye. Dr Gupta equally was neutral on the question. The protagonists in the matter were Dr Kyle on the one hand and Dr Colerio on the other.

Dr Kyle gave positive evidence both criticising Dr MacLean's treatment and handling of the matter but also to the effect that had the remaining particulate material been removed from the eye in the course of the evening of the accident, it was likely that at least 40% of visual acuity would have been retained. This statement given in evidence has to be contrasted however with a statement in his supplementary medical report which was lodged where there is the following statement,

This statement is of much less force than the evidence given in court.

Dr Colerio on the other hand was equally dramatic in the opposite direction stating that having regard to the fact that the notes revealed that the corneal epithelium as having been totally destroyed, the eye, to quote him, was "doomed" from the start. The doctor was quite unshaken from his position in cross-examination and regarded Dr Kyle's assessment of 40% as being wholly unrealistic given the state of the initial damage.

While Dr Kyle gave his evidence in a balanced and impressive way, in my opinion it is not acceptable on this vital question since it was coloured by his view of the way in which he understood Dr MacLean had handled the matter. The notes did not reveal that Dr MacLean had carried out an inversion of the eyelid, which is a double exercise examining the cavity at the top of the eye, and insofar as any material was therefore removed by that doctor Dr Kyle was of the view that while Dr MacLean thought he had removed all the material he obviously had not done so, nor had he done so adequately. He considered that a House Officer would not have the necessary skill to invest the eyelid, and therefore concluded that Dr MacLean had not done it. He therefore assumed that on the basis of the notes by way of conclusion that sufficient material was left in the eye to cause further damage subsequent to the pursuer leaving the Eye Pavilion.

In contrast Dr MacLean was adamant that he had carried out the inversion process, that he had removed everything he had seen within the eye, whether by irrigation or by physical removal, but that he was not satisfied that all material had been removed and if he had got his way he would have admitted the pursuer to hospital as an in-patient with a view to him being seen by a consultant, or at least a registrar that night. As a matter of narrative he did not do so because, as is recorded in the hospital records, the pursuer himself wished to return to the West if he required further treatment since his mother lived in Port Glasgow and accordingly of his own volition and against advice left the Eye Pavilion. Dr MacLean advised him to take further treatment and gave him an out-patient card to which I have already made reference indicating what treatment he had carried out and containing the statement at the bottom as to why the pursuer was leaving the hospital.

In this respect I have no hesitation in accepting the evidence of Dr MacLean that he did carry out the inversion process and remove a substantial amount of material. This therefore destroys the base upon which Dr Kyle's opinion, and that is all it was, proceeded and would support the position of Dr Colerio who considered that such material as Dr Gupta estimated he had removed in the operation the following day would have made little or no difference to the ultimate state of the eye.

For these reasons I accept the evidence of Dr Colerio and accordingly hold that the defenders have failed to establish in respect of any allegations of negligence against Dr MacLean that whatever material was left in the eye when Dr MacLean ceased treating him materially contributed to the final state of the eye. As a matter of causation therefore I consider that the case against the third party fails.

Having reached that conclusion it is nevertheless necessary for me to resolve the final matter with regard to how the conduct of Dr MacLean and the treatment given to the pursuer by him should be categorised.

The defenders sought to make much of the inadequate noting by Dr MacLean which he admitted to some extent in the document variously found in the process which I shall refer to as 43/3/1 and, indeed, various attempts were made to construe the entries almost as conveyancing documents to establish that Dr MacLean had in fact not removed all the material although he thought he had. More importantly, the entry, or note, at the bottom of the card refers to the wish of Dr MacLean to admit the pursuer for "observation". This throws into focus the factual dispute between him and the pursuer.

The pursuer's position was that he requested of Dr MacLean an opportunity to see a consultant that night but was told by Dr MacLean that no-one was available until the following morning. The pursuer maintained he still wanted further treatment and for that reason, and that reason alone, he decided to return to Port Glasgow and go to Inverclyde in the hope of obtaining the additional treatment he wanted. Dr MacLean maintained that he advised the pursuer of the gravity of his injury and that he should be admitted as an in-patient in hospital whereupon he would make arrangements for him to be seen that evening at least by the Registrar. He denied positively the suggestion that he had told the pursuer that a consultant would not be available until the following morning. He maintained, however, that the pursuer was adamant that he wished to return to the west. He therefore advised the pursuer to seek immediate medical treatment and that was why he gave him the note to take to the relevant hospital, which was Inverclyde.

As I have indicated the case against Dr MacLean was both failure properly to remove all the material that he should have done from the eye, but also not to make him take immediate steps to contact a senior colleague to examine the pursuer that evening and, if necessary, carry out operative treatment.

Dr MacLean struck me as an honest witness doing his best to recollect matters but I am not satisfied that he is reliable in every respect of this matter. I see no reason to doubt the pursuer in his assertion that he requested to see a consultant and was told that one was not available. I see no reason why the pursuer should invent that statement and it is to some extent supported by the evidence of his brother taken on commission and who was present at the time. While not conclusive it is nevertheless to my mind relevant that the note by Dr MacLean refers only to "observation" which is materially different from operative treatment. I therefore conclude that despite his evidence, at the material time the doctor thought he had probably removed all the material that was in the eye since I accept that he carried out the inversion process, but in order to make sure he had he wanted the pursuer to be admitted to the hospital for observational purposes. If necessary a consultant could be consulted in the morning. In reaching this conclusion I do not accede to the suggestion by counsel for the defenders that Dr MacLean was being dishonest in this respect. After ten years I consider his recollection may be genuinely faulty. In reaching this conclusion I am not in any way persuaded by some evidence relating to the absence of an irregular discharge form. On the balance of the evidence such would only be required if a person discharging himself from hospital having been admitted. The pursuer declined to be admitted and was always therefore an out-patient as far as the Royal Infirmary was concerned. Counsel for the third party conceded that if the evidence was to the effect that had Dr MacLean allowed the pursuer to leave the Eye Pavilion in the knowledge that there was a substantial amount of material still in his eye without obtaining assistance from a senior colleague he would have acted negligently. However, I do not find that to be the case. I consider that Dr MacLean carried out a thorough examination and treatment of the eye removing all the material that he thought was there. The fact that a comparatively little amount was still there would support that position. The reference in the records to the fact that the eye was padded would suggest equally that further treatment was considered by Dr MacLean to be necessary. In those circumstances, having found as I have that he did not intend the pursuer to see a consultant if necessary until the morning, I nevertheless do not categorise that as negligent, particularly where I have held that the remaining material did not materially contribute to the ultimate state of the eye and the damage already having been done. It does not even seem to me to have been an error judgement but merely a decision legitimately taken to retain control of the patient and to ensure that all the treatment that could be carried out would ultimately be effected. Thus there can be content, in my view, given to the word "observation" which was obviously deliberately selected.

In these circumstances I do not consider that the conduct of Dr MacLean that I have found proved should be categorised as falling below the standard of reasonable care to be demanded from a reasonably competent doctor. Thus if it had been relevant to the issue I would not have found him to have been negligent.

Counsel for the defenders submitted that I should have assessed his right to contribution from the third party on a 50-50 basis, not in terms of the Law Reform (Miscellaneous Provisions) Act 1940 but simply on an entitlement to relief or contribution based on the relevant Rules of Court. Counsel for the third party reflected this general position by seeking to amend his relevant plea-in-law to defend such a claim for relief. This raised in my mind whether such a claim at common law could be any more than pro rata but this became irrelevant because of the fact that that was precisely what the defender was seeking. In the circumstances, however, I have held that that claim fails.

In the foregoing circumstances the third party's fifth plea-in-law, falls to be sustained and they will be assoilzied. I shall sustain the pursuer's first plea-in-law, repel the defenders' third plea-in-law and grant decree of damages against the defenders in the sum I have already calculated.

Finally, I feel it necessary to deprecate the length of time this action has taken to come to fruition. It reflects no credit on any persons involved in its management, which must include the Court and points out the need for further efforts to be made in court procedures to prevent such occurrences.